Andhra HC (Pre-Telangana)
Dr. T. Rajeswari vs Vice-Chancellor-Cum-Chairman, Sree ... on 21 January, 1999
Equivalent citations: 1999(2)ALD69, 1999(2)ALT33
ORDER
1. The appointment of 3rd respondent, that is, Smt. K. Vijayakumari, as Lecturer in Zoology Department in Sree Vcnkateswara University, Tirupati, vide proceedings E.11/2/89 Appointments, dated 17-2-1989, in a post earmarked for a scheduled caste candidate has been assailed. In other words, this Court is called upon to decided whether Smt. K. Vijayakumari, who belongs to forward community, by virtue of her marriage with a scheduled caste man acquires the social status of her husband to claim protective discrimination as envisaged under Article 16(4) of the Constitution of India.
2. The facts of this case are not in dispute. The 3rd respondent, daughter of one K. Ramachandra Reddy, seemed to have married one M. Rajeshwara Rao who belongs to scheduled caste and thereafter she started applying for appointment as a scheduled caste candidate by contending that by virtue of her marriage she acquired the caste of her husband. At the time when the 3rd respondent appeared before the 1st respondent-University for a temporary appointment in the year 1984, the Tahsildar, Kavali, while issuing the caste certificate stating that the 3rd respondent belongs to scheduled caste relied on a judgment of this Court rendered in the case of P. Usha Kiran v. Government of A.P., 1976 (1) APLJ 58 (SN), and she seemed to have been appointed to that post on the basis of the above certificate. Subsequently, as per the statute of the University Act, regular notification was issued calling applications from the eligible candidates to fill up the vacancies available in the University on 3-11-1988. In Zoology department, as per the notification, applications were called for to fill up two posts of Professors, one post of Reader and two posts of Lecturers. The notification simply says that the rule of reservation prescribed by the State Government will be followed but it does not say which of the posts were earmarked for reserved categories. Be that as it may, after the process of selection is over the 3rd respondent was appointed as a Lecturer in a post earmarked for scheduled caste category at Post Graduate Centre, Kavali under the impugned proceedings dated 17-2-1989. The whole basis for her claim with regard to social status seemed to be the judgment in the case of Usha Kiran (supra). It is very short and sweet judgment without any discussion, without looking into the legal aspects of the matter and without reference to the G.Os. on the subject the learned Judge declared that on marriage the lady acquires the caste of her husband and she ceases to be a member of her caste in which she used to be before her marriage. The learned Judge proceeds and holds that acquisition of caste by birth is only one of the modes of acquiring caste by an individual. With great respect to the learned Judge if this can be accepted as a principle, perhaps, each and every individual would have chosen the caste to suit his/ her needs to get maximum benefit in the present caste ridden society. A person acquires his caste by birth, but not by any other mode, Unlike the religion, even if an individual resorts to conversion, as long as he continues to be in Hindu fold the caste in which he was bom will continue to hunt him even at the graveyard. Be that as it may the learned Judge has taken that view. Suffice to state that the view taken by the learned Judge is not supported by any orders issued by the Government or by any judgments of any superior Court where the issue was discussed and reached a conclusion of that effect. On the other hand under Article 341 of the Constitution of India the President alone is empowered to specify the castes, races or tribes or parts of groups within the castes, races or tribes which shall for all purposes of the Constitution be deemed to be scheduled caste in relation to that State or Union Territory as the case may be. In exercise of the power conferred, the Ministry of Home Affairs, New Delhi, issued a brochure containing the list of scheduled caste and scheduled tribe and also the guidelines for verifying the claims for issuing scheduled caste and scheduled tribe certificates. The Government of India in its letter L.No.35/l/72-RU(SCT.V) dated 2-5-75 stipulated some guidelines which reads as under:
"The guiding principle is that no person who was not a scheduled caste or a scheduled tribe by birth will be deemed to be a member of a scheduled caste or scheduled tribe merely because he or she had married a person belonging to a scheduled caste or a scheduled tribe.
Similarly a person who is a member of a scheduled caste or a scheduled tribe would continue to be a member of that scheduled caste or scheduled tribe as the case may be, even after his or her marriage with a person who does not belong to a scheduled caste or a scheduled tribe."
3. From this it is evident that a person who is not a scheduled caste or scheduled tribe by birth will not be considered as a member of the scheduled caste or scheduled tribe merely because he/she had married a person belonging to a scheduled caste or scheduled tribe. Likewise, a person who is a member of scheduled caste or scheduled tribe will not loose her social status after his/her marriage with a person who does not belong to Scheduled Caste or Scheduled Tribe. In other words, the spouses to the institution of a marriage continue to retain their original social status. Ours being a paternal society the offsprings of such an intercaste marriage acquires the caste of their father for all purposes and the children will enjoy not only the privileges but also the discrimination that follows from the caste of their father, but not the mother. Except in the judgment referred Usha Kiran's case (supra) in all other judgments this Court has approved the view taken by the Central Government. Instead of referring to all these decisions, suffice to refer to the latest decision of the Supreme Court in the case of Mrs. Valsamma Paul v. Cochin University, , wherein his Lordship Justice K. Ramaswamy, as he then was held that when a member is transplanted into the dalits, tribes and OBSs he/she must of necessity also undergo same handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had a march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4) as the case may be. Acquisition of the status of scheduled caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.
4. For the above reasons the law laid down in the case of Usha Kiran (supra) cannot be held to be a good law and it is per incurium. In the light of the view expressed by the superior Courts the 3rd respondent cannot acquire the caste of her husband on marriage and she retains her caste as long as she is alive. Hence she cannot be considered as scheduled caste candidate for availing the benefit under Article 15(4) of the Constitution of India and accordingly the appointment of respondent No.3 as lecturer in Zoology in a post earmarked for scheduled caste has to be declared as invalid and it is accordingly declared as invalid.
5. Mr. Jagapathi, strenuously contended that if the appointment of R3 is set aside at this length of time his client may not even think of Government service as she has crossed the age prescribed for entering into Government service. He also contends that R3 has not committed any fraud on the authorities concerned at any point of time and that she claimed social status by virtue of her marriage and she cannot be penalised for the mistake committed by the 1st respondent authorities. I would not like to go into the details whether the appointment was done wantonly or involuntarily. The law of the land is made crystal clear by the Central Government atleast one decade prior to her marriage. She being a post graduate or even a doctorate she would have been more cautious in claiming the social status and having claimed the status to which she docs not belong, even involuntarily, she has to pay the price for it. In these type of cases neither equities can be claimed nor granted. Hence I cannot accept to the request of Mr. Jagapathi and it is accordingly rejected.
6. The question that now falls for consideration for this Court would be whether to allow the post to be filled up now or with the suitable candidate who appeared for the interview at that point of time. The respondent-University in contending that the petitioner who brought home the fraud played on the Constitution is not in the selection list for appointment. On the other hand, petitioner's Counsel contended that she is the only other scheduled caste candidate who fulfilled all the conditions for appointment as lecturer in Zoology and there is no reason why she should not be appointed in the vacancy. I tried to find out the reasons why the petitioner was not selected. But unfortunately the minutes of the selection committee are not made available to the Court. Hence I propose to give the following direction:
7. If the petitioner secures minimum marks for appointment and if there are no other meritorous candidates above her among the scheduled caste candidates, she has to be considered for appointment as lecturer in Zoology. I have given this direction keeping in view Article 335 of the Constitution which stipulates that the claims of the members of the scheduled caste and scheduled tribe shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union or of a State. In other words, if she is having the minimum standards of teaching she should be considered for appointment and I am sure no one can say that she is not having the minimum required capacity to teach the students as she is holding the post of senior fellowship by the time she appeared for the interview and on whom a Doctorate was conferred for the work done by her within few months thereafter.
8. In the result, the writ petition is allowed. No costs.